United States District Court, W.D. Washington, Tacoma
QWEST CORPORATION DBA CENTURYLINK QC, A COLORADO CORPORATION, PLAINTIFF,
GONZALES BORING & TUNNELING CO. INC., AN OREGON CORPORATION; AND SCARSELLA BROS. INC., A WASHINGTON CORPORATION, Defendant.
ORDER DENYING CENTURYLINK'S MOTION FOR PARTIAL
B. Leighton United States District Judge.
MATTER is before the Court on Plaintiff CenturyLink's
Motion for Partial Summary Judgment. The Washington State
Department of Transportation hired Defendant Scarsella Bros.
to bore under Harrison Avenue in Centralia, as part of a
larger highway project. The specific job involved installing
a 36” casing for a carrier culvert under Harrison.
Scarsella sub-contracted Defendant Gonzales Boring &
Tunneling to bore the hole. Gonzalez ultimately damaged
CenturyLink's conduit in the area, and CenturyLink sued.
The case and the Motion relate to the requirements of
Washington's “call before you dig” statute,
the Underground Utility Damage Prevention Act, Chapter 19.122
UUDPA requires excavators to notify a locating service, which
in turn notifies those with underground utilities in the
area, so that those utilities can be located and marked, so
that damage to them can be avoided. Markings made in response
to such a call are valid for 45 days. RCW
19.122.030(6)(ii)(c). A facility owner can waive the
UUDPA's notification and marking provisions. RCW
March 5, 2015, Gonzalez called the locator service to notify
CenturyLink that it planned to bore under Harrison Ave.
CenturyLink hired South Bay Excavating to locate and mark
CenturyLink's utilities (conduit containing fiber optic
cable) in the area. South Bay “potholed” the
conduit, and its subcontractor, Locating Inc.,
marked it. Gonzales began excavating on March 26, but WSDOT
suspended the work to negotiate a price adjustment to install
a smaller, 20-inch casing for a carrier pipe, based in part
on the presence of utilities in the area.
claims that South Bay's marking expired on April 23,
2015. Gonzales claims it “maintained” the marking
during the delay. On May 8, WSDOT informed CenturyLink that
Gonzalez's boring would resume on May 11. CenturyLink
sent an internal email acknowledging this fact the same day:
Scarsella's subcontractor Gonzales Boring will begin
boring and jacking a 20” steel casing starting Monday
morning May 11, 2015 for the pipe at the SE corner of
Harrison Ave. Interchange next to Papa Pete's Pizza.
Larkin Decl. Dkt. # 63 at Ex. 10.
Bay asked CenturyLink whether Gonzalez would be excavating in
the same area as another upcoming project, and
CenturyLink's response email demonstrates that it was
aware boring was about to resume, and where it would occur:
[I]t is further west in front of Papa Pete's Pizza. We
potholed the conduit/fiber [at Harrison Ave] already.
Id. Gonzalez argues that this email demonstrates
that CenturyLink believed its facilities had already been
physically located and marked, and that it did not
require-that it waived its right to-any further notice of the
resumed its work on May 12. A week later, it bored into and
damaged CenturyLink's conduit, and the fiber optic and
copper cables in it, under Harrison Ave. CenturyLink sued,
claiming the damages exceed $500, 000. It asserts a UUDPA
violation claim, and negligence per se and common law
negligence claims. It seeks actual and treble damages (under
the UUDPA), claiming that Gonzalez's and Scarsella's
violations were “wanton and malicious.”
seeks summary judgment on each of its liability theories,
leaving for trial the amount of its damages. It argues that
because the initial markings expired, Gonzalez and Scarsella
are, effectively, strictly liable for the damage as a matter
and Scarsella argue that technical noncompliance with the
UUDPA is not negligence per se, and that in any event,
CenturyLink's admitted knowledge that its facilities had
been recently located and marked, and that the boring work
was about to resume, is a waiver of its right to be notified
about the work a second time. This argument is based on
CenturyLink's express acknowledgment (in the May email)
that the work would resume, and its assurance that its
conduit in the area had already been “potholed.”
Neither party substantially addresses the element of
causation, but there is no evidence that CenturyLink would
have re-potholed and remarked its conduit a second time
judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In determining whether an issue of fact
exists, the Court must view all evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v.
Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine
issue of material fact exists where there is sufficient
evidence for a reasonable factfinder to find for the
nonmoving party. Anderson, 477 U.S. at 248. The